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McDermott Wins Summary Judgment Against the United States Department of Justice

In Depth

WASHINGTON, DC (August 1, 2017) — International law firm McDermott Will & Emery, on behalf of pro bono client, the Mattachine Society of Washington, DC (“Mattachine Society”), won its motion for summary judgment filed against the United States Department of Justice (“DOJ”) in the US District Court for the District of Columbia. The motion now compels disclosure of previously requested historical documents under the Freedom of Information Act (“FOIA”).

A portion of the historical documents McDermott sought to uncover were those related to President Dwight D. Eisenhower’s Executive Order 10450 (“EO 10450”). In 1953, President Eisenhower signed EO 10450 and, with the stroke of his pen, provided J. Edgar Hoover’s Federal Bureau of Investigation (“FBI”) with the legal authority and jurisdiction to purge gay and lesbian employees from the federal employment rolls. The Mattachine Society sought the production of documents related to EO 10450, along with the files of then Assistant Attorney General Warren E. Burger, who was tasked with enforcing EO 10450 in connection with the Mattachine Society’s mission of “archive activism” which seeks to uncover and preserve LGBT American history.

In a 14-page opinion, US District Court Judge Royce C. Lamberth found that the FBI’s original search for documents was inadequate and “not reasonably calculated to uncover all relevant documents.” With respect to the Government’s failure to produce any Warren Burger documents, “[t]he Court finds it nearly impossible to believe that a search for every permutation of the name of the man who was charged with carrying out EO 10450, a robust federal mandate that built upon an established FBI initiative, yielded zero responsive documents.” Judge Lamberth ordered the parties to agree on an expanded set of search terms that will meet the Mattachine Society’s request to expose “the FBI’s systematic collection of information, specifically on homosexual employees, in the wake of EO 10450.”

“We are pleased that the Court has ordered the expansion of the DOJ’s inadequate search,” said McDermott partner, Paul Thompson. “We look forward to working with the government to devise an appropriate search for documents so that we may prevent the erasure of this important period of time in LGBT history and stop future generations from repeating the mistakes of the past.”

“The documents that the Court has ordered searched for and uncovered are part of the history of discrimination that is still experienced by LGBT Americans,” adds McDermott partner, Lisa A. Linsky. “Judge Lamberth’s decision sends a powerful message to the DOJ, FBI and other federal agencies that a superficial search for documents is not acceptable. The victims of EO 10450 deserve to have their story told and remembered and we are confident that the Mattachine Society will use any new-found documents to do just that.”

For the past five years, McDermott and the Mattachine Society have embarked on a mission of archive activism to investigate and disclose historical evidence of unconstitutionally impermissible animus and discrimination against lesbian, gay, bisexual and transgender (“LGBT”) Americans. As part of the mission, McDermott’s pro bono team has filed countless FOIA requests in an effort to uncover the often deleted political histories of LGBT Americans who faced persecution and discrimination in all branches of the Federal Government.

McDermott’s and the Mattachine Society’s victory sends the message that they will refuse to allow federal, state and local governments to keep important historical documents from the public. “Thousands of LGBT Americans were ruthlessly investigated, interrogated and fired because of this Order, and historians still do not know the full extent of its implementation and enforcement by such officials as then-Assistant Attorney General, Chief Justice Warren Burger,” said Charles Francis, President of the Mattachine Society. “It is time for the government to release these historic FBI and DOJ documents that launched decades of discrimination against LGBT Americans.”

About McDermott Will & EmeryMcDermott Will & Emery is a premier international law firm with a diversified business practice. Numbering more than 1,000 lawyers, we have offices in Boston, Brussels, Chicago, Dallas, Düsseldorf, Frankfurt, Houston, London, Los Angeles, Miami, Milan, Munich, New York, Orange County, Paris, Rome, Seoul, Silicon Valley and Washington, DC. Further extending our reach into Asia, we have a strategic alliance with MWE China Law Offices in Shanghai.